in Re Boy Scouts of America

Opinion

Opinion issued October 14, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00653-CV ——————————— IN RE BOY SCOUTS OF AMERICA AND SAM HOUSTON AREA COUNCIL BOY SCOUTS OF AMERICA, Relators

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

On August 6, 2014, relators, Boy Scouts of America and Sam Houston Area

Council Boy Scouts of America, filed a petition for writ of mandamus with a

motion for emergency stay challenging the trial court’s July 28, 2014 order

compelling relators to produce the individuals listed in that order for depositions by August 7, 2014.1 The depositions in question were for the relators’ corporate

representatives to testify regarding the relators’ Form 990 tax returns for 2012.

These depositions were sought, in part, because the relators had recently raised the

affirmative defense of charitable immunity, under the Texas Charitable Immunity

and Liability Act of 1987, TEX. CIV. PRAC. & REM. CODE ANN. § 84.003(1)(A)

(Vernon Supp. 2004-2005) (the “Act”), based primarily on their tax-exempt status.

We granted the relators’ emergency motion to stay the depositions in

question on August 6, 2014, until the petition was finally decided because the

depositions were scheduled for the next day. The Court also requested and

received a response to the mandamus petition from the real parties in interest Mark

and Melissa Evans, Individually and as Next Friends of J.W.E., a Minor, Deceased.

The Court further received relators’ reply and the real parties’ surreply. We have

“note[d] that the doctrine of charitable immunity [under the Act] has been treated

as an affirmative defense that must be pleaded and proven by parties seeking its

application.” Doctor v. Pardue, 186 S.W.3d 4, 8 (Tex. App.—Houston [1st Dist.]

2006, pet. denied) (citations omitted). Thus, the Court, having examined and fully

considered the petition, the response, relators’ reply, and the surreply, is of the

1 The underlying case is Mark and Melissa Evans, Individually and as Next Friends of J.W.E., a Minor, Deceased v. Sam Houston Area Council Boy Scouts of America; Boy Scouts of America; Sugar Land Baptist, Troop 1845; and Phyllis Lavender, Cause No. 2013-02376, in the 129th District Court of Harris County, Texas, the Honorable Michael Gomez presiding.

2 opinion that relators have not established themselves entitled to the mandamus

relief sought. See TEX. R. APP. P. 52.8(a), (d).

Accordingly, we deny the petition for a writ of mandamus and lift the stay

of the depositions in question imposed by our August 6, 2014 order.

PER CURIAM Panel consists of Justices Higley, Bland, and Sharp.